M. Bakri Musa
19th June 2017

The dismissive attitude of Malaysian officials to the latest US Department of Justice’s (DOJ) civil forfeiture lawsuit targeting expensive assets allegedly acquired with funds illicitly siphoned from 1MDB is misplaced. Their stance is an embarrassing display of gross ignorance.

Yes, civil lawsuits in America are as common as mushrooms after a rainfall. This DOJ action however, is the largest (in dollar value) such forfeitures to date. This second set of lawsuits targeted assets allegedly given to Hollywood celebrities, as well as to the spouse of “Malaysian Official 1” (MO1). The two categories are separate though the latter believe that she is in the same class as the former.

Najib apologists and enablers never fail to point out with unconcealed smugness that the defendants to the lawsuits are not individuals, specifically Najib or his associates and relatives, rather those assets.

That is right, but such sophistry reveals a fundamental ignorance of the American judicial system. Those targeted assets do not exist in vacuo; someone or somebody owns them. They in effect are the defendants.

By targeting those assets and not their owners, DOJ is spared the task of identifying their rightful owners. That can be an arduous and expensive task, what with multiple shell companies involved in dizzying number of foreign jurisdictions. Instead, all DOJ has to do is wait for the owners to come out of the woodwork to identify themselves and lay claim to those assets by challenging the lawsuit. They have to, otherwise they would lose those assets, or at least their share.

One of those owners is Jho Low. He claimed to have bought those assets with his family’s wealth. That at least was believable as he came from a wealthy clan in Penang. Sure enough, his family’s assorted trusts too have contested the lawsuit from faraway New Zealand!

Then there is one Reza Aziz, identified as the “stepson of MO1.” Where did this son of a nondescript Malaysian army officer get his wealth? From his mother, the daughter of my parent’s contemporary as a village school teacher in Kuala Pilah? Visit her dilapidated ancestral home back in my kampong, and her current flamboyant lifestyle today would make you puke. As for Reza’s stepfather Najib Razak, that man had spent his entire adult life in government, with its measly pay.

Reza Aziz concocted the idea that the money (some hundred million!) was a “gift” from a benevolent Saudi Sheik. Even the wealthiest corpulent Sheik would not be so extravagant with his favorite toy-boy, yet this Reza Aziz character wants those seasoned DOJ prosecutors to believe his story! Even his American accountants did not believe him.

One other owner has also come forward. Hollywood celebrity Leonardo DiCaprio has not only surrendered the gifts he had received “from the parties named in the civil complaint” but went further and cooperated with DOJ investigators. That cannot be good news for Jho Low or Reza Aziz.

Any bets whether any of the other “owners,” specifically the alleged recipient of that pink diamond, MO1’s spouse, would return their gifts? It is worth pondering whose actions better reflect the forgiving spirit of Ramadan, hers or DiCaprio’s?

Najib supporters trivialize the DOJ’s lawsuit, citing its lack of “action” after its first filing last year as proof of its political intent. To them, these series of forfeiture lawsuits are yet another albeit more sophisticated American attempt at regime change. Such commentaries reveal a pathetic lack of the basic understanding of the US justice system.

This asset forfeiture is a civil lawsuit. Unlike criminal ones where the axiom “justice delayed, justice denied” is adhered to, civil suits can and do drag on for years. They go to trial only when all parties are ready, and all extraneous issues as with ownership claims settled. The fact that these forfeiture lawsuits drag on should not be misinterpreted in any way.

There is also the possibility that criminal charges would be filed against specific individuals during the discovery or the trial.

There is only one certainty. Once a lawsuit is filed, those assets are effectively tied up. They cannot be sold, mortgaged, or altered in any way without the court’s consent. DOJ has in effect total control of those assets, meaning, their de facto owner.

These forfeiture lawsuits will not be settled out of court. Those prosecutors have a point to prove, and with unlimited resources to pursue it. That reality has prompted owners like DiCaprio to cooperate with DOJ.

This will not be like a Malaysian trial where prosecutors could be illicitly paid off or where defense lawyers openly brag about having judges in their (lawyer’s) back pockets. The defendants have hired some of the best legal minds including those who had once worked in DOJ and had successfully prosecuted many high profile kleptocrats. It will be far from a walk in the park for the DOJ lawyers.

DOJ does have something in its favor. In a civil suit, unlike a criminal trial, the burden of proof is lower, only the “preponderance of evidence” and not “beyond reasonable doubt.” The burden of proof also shifts from the plaintiff to the defendant. Meaning, the owners have to prove that the funds they used to purchase those assets were untainted. It would be very difficult to convince an American jury that a Middle Eastern sheik would willingly part away with hundreds of millions of dollars to a Malay boy no matter how pretty he looks, for nothing in return.

Regardless of the outcome, this trial would expose to the world all the sordid ugly details of the 1MDB shenanigans. Once those are out, not many would be proud to call themselves Malaysians. They would be downright ashamed for having elected a leader with such unbounded avarice, and then letting him get away with it for so long.

As for MO1, his spouse and stepson, they are beyond shame. With the millions if not billions they have already expropriated, they can handle the setback. Malaysians however, would be saddled for generations with 1MDB’s humongous debt. Quite a legacy for the son of the late Tun Razak! As for the Tun, what a legacy to have bequeathed Malaysia with his ethically-blighted son.